No Court Order Needed to Spy on Americans Overseas, Appeals Court Rules

The Fourth Amendment’s shield against invasive searches reaches only partially across the border, a federal appeals court ruled this week, finding that the nation’s spies don’t need a court order to wiretap an American overseas, though there has to be a good reason for listening in.

The 2nd U.S. Court of Appeals ruling (.pdf) fills in a gap in surveillance law and could complicate cases challenging both the government’s warrantless wiretapping program and a newly passed surveillance law that gives the government wide latitude to snoop from inside the United States without getting court orders.

The unsigned opinion found that wiretapping overseas was invasive, but that it made no sense to require a court order to wiretap or search an American overseas, since the warrant would have “dubious legal significance” in another country. The test, the court says, is whether the search is reasonable.

Monday’s ruling rejected the appeal of Wadih El-Hage, an American citizen convicted of conspiracy in the deadly 1998 al Qaeda bombings of
U.S. embassies in East Africa. El Hage contended that the government violated his constitutional rights when it listened in for a year on two phone lines he used while living in Kenya.

ACLU attorney Jameel Jaffer, who is suing to overturn an expanded spy powers law passed by Congress in July, thinks the court should have required warrants, but sees an advantage in the ruling.

"I don’t know of any dragnet surveillance program aimed at telephone calls or emails that has survived a reasonableness review," Jaffer said.

The intelligence agents targeting El-Hage had no court order and wiretapped for nine months without getting the approval of the Attorney General – which was required by Executive Order 12333 when the government targeted an American overseas.

The court ruled, however, that the violation of wiretapping rules and the scope of surveillance were justified:

Because the surveillance of suspected al Qaeda operatives must be sustained and thorough in order to be effective, we cannot conclude that the scope of the government’s electronic surveillance was overbroad. While the intrusion on El-Hage’s privacy was great, the need for the government to so intrude was even greater.
Accordingly, the electronic surveillance, like the search of El-Hage’s
Nairobi residence, was reasonable under the Fourth Amendment.

The ACLU hopes to turn that reasonableness argument against the government’s newfound legal powers to monitor Americans’ international phone calls and emails using facilities inside the United States.

In July, Congress passed the FISA Amendments Act, which gave the executive branch the power to order Google, AT&T and
Yahoo to forward to the government all e-mails, phone calls and text messages where one party to the conversation is thought to be overseas.

President Bush said that law "protect[s] the liberties of our citizens while maintaining the vital flow of intelligence." It also attempted to dismiss class-action lawsuits targeting the internet and phone companies that secretly helped the government warrantlessly spy on Americans’ phone calls and emails for six years.

The ACLU contends those blanket powers to grab international communications of Americans without specific court orders violate the
Fourth Amendment and would stymie journalists who often speak to confidential sources outside the country.

The same law, however, tightened the requirements for targeting a specific American overseas — as in the case of El Hage, for the first time requiring that the nation’s spying court approve such wiretaps.

The ACLU ‘s lawsuit, Amnesty vs. Mukasey is likely to have its first hearing sometime in January, while the constitutionality of retroactive amnesty for the government’s spying partners will be argued Tuesday in the Electronic Frontier Foundation’s suit against AT&T.

The 2nd Circuit’s decision is unlikely to play a role in Tuesday’s hearing in San Francisco, but could be pivotal if the EFF’s suit survives the government’s attempt to have it dismissed.